January 19, 1937

CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

The right hon. gentleman says he was so taken up, he had so much to do, that he had not time to consider or to deal with the question.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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LIB

William Lyon Mackenzie King (Prime Minister; Secretary of State for External Affairs; President of the Privy Council)

Liberal

Mr. MACKENZIE KING:

No, he did not say anything of the kind at any time or in any place.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

Well, that is pretty nearly what he said; I cannot bear in mind the absolute details of it. Here is a long statement in which the Prime Minister of Canada states that so far as Canada is concerned parliament has been called to meet on January 14, and that it could not be summoned in special session before definite action was taken by His Majesty which would require the consideration of parliament.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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LIB

William Lyon Mackenzie King (Prime Minister; Secretary of State for External Affairs; President of the Privy Council)

Liberal

Mr. MACKENZIE KING:

Quite true.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

That is true, yes; but there are other considerations. The preamble to the Statute of Westminster is not a binding legal document; it is only a suggestion as to the constitutional procedure which should be adopted in ordinary times when there are no emergencies. But the right hon. gentleman declares there was an emergency. He knows what took place; I do not know. It was perfectly clear that section 4 of the Statute of Westminster did not necessarily refer to a statute such as the Abdication Act which alone was within the competency and jurisdiction of the imperial parliament. Why did he not make it clear that it was impossible to follow the constitutional procedure or convention, recited in the preamble of that statute and that he didi not object to the Abdication Act as an emergency measure? Instead of that, as a precedent for all future time, we have an imperial parliament declaring that Canada did request and consent, whereas as a matter of fact one may look within the four corners of the order in council and fail to see any request or consent in accord with the precedents hitherto established in Canada. All we find is that the

76 COMMONS

Succession to the Throne-Mr. Cahan

governor in council met and approved of an act being submitted to the parliament of the United Kingdom reciting a preamble in which were stated certain alleged facts which were not quite in accordance with the true facts or in accordance with the constitutional practice which had hitherto prevailed in Canada.

I believe this bill is unnecessary; it is futile, and it can have no effect but to cover up a condition which hon. gentlemen opposite appear more or less anxious to conceal. At this date, if hon. members opposite had wished to have the position regularized, so far as it is possible to regularize it, it would have been quite sufficient to have introduced a joint resolution of the House of Commons and the Senate approving of the government acting in an emergency to the extent to which they did, so as to make it clear that its action by order in council formed no general precedent for the future enactment and application to Canada of imperial legislation.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Hon. ERNEST LAPOINTE (Minister of Justice):

Mr. Speaker, I confess I have followed with some difficulty the observations of the hon. member for St. Lawrence-St. George (Mr. Cahan). Although he speaks always with a great display of learning, I am not at all sure-and I believe other hon. members must be in the same position- that at the conclusion of his observations the real position he is taking was quite clear.

First of all he contends that the act of the imperial parliament, His Majesty's Declaration of Abdication Act, was all that was necessary, but on the other hand he criticizes the government for having resorted to an order in council expressing to the imperial parliament the request and consent of Canada to the passage of the act, instead of having done so by way of parliamentary enactment. I suggest the two positions are contradictory, and at least one of them should be abandoned by the hon. member. When the Statute of Westminster was enacted fears were expressed in many quarters, both in Canada and outside of it, as to the dangers which might arise in times of crisis because of the lack of unity which would be the result of the enactment. Fortunately events which have taken place have shown those fears to be groundless. There has never been greater unity throughout the British commonwealth than was displayed in the month of December last. After the crisis had passed the London Times used this language:

The past few days have provided a searching test under which the free association of the

British commonwealth has demonstrated a fundamental unity exceeding anything which could have been guaranteed by the most rigid paper constitution.

My hon. friend has referred to the British North America Act, and I agree with him when he says that strictly speaking, from the legal point of view, at the moment the present king came to the throne he became our sovereign. I would invite the attention of the hon. member for Winnipeg North Centre (Mr. Woodsworth) to the fact that the British North America Act is still the constitution of Canada. Section 7 of the Statute of Westminster specially enacts that nothing in that act may have the effect of repealing or amending the British North America Act. By the wording of section 2 of the British North America Act the king of the United Kingdom is our sovereign. The section is as follows:

2. The provisions of this act referring to Her Majesty the Queen extend also to the heirs and successors of Her Majesty, kings and queens of the United Kingdom of Great Britain and Ireland.

The crown is interwoven through many of the sections, and so long as the British North America Act is not repealed-it was thought by Canada that it should not be repealed or even amended until there was some consent on the part of the various parties to the agreement of confederation-those sections of the act apply to us in the strictly legal viewpoint.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

The implication is that

they might be amended by another act of the imperial parliament, namely, the Statute of Westminster.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

Yes, by

implication, and to that extent it does apply to Canada.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Quite so.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

I think

the hon. member for Winnipeg North Centre was wrong when he said the other day that the Statute of Westminster does not mean anything. If there had been no Statute of Westminster he would not have been able to speak on the law of succession to the throne. That would have been none of the business of the Canadian parliament. My hon. friend would have been deprived of the opportunity of making the eloquent address he made the other day, as well as the one which I am sure he is going to make to-day.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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CCF

James Shaver Woodsworth

Co-operative Commonwealth Federation (C.C.F.)

Mr. WOODSWORTH:

We can speak

about it, but we cannot do anything else.

Succession to the Throne-Mr. Lapointe

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

At any

rate my hon. friend is taking advantage of the privilege to speak about it. My hon. friend differs from the hon. member for St. Lawrence-St. George; he runs too fast, while the hon. member for St. Lawrence-St. George is stuck in motionless immobility. He sticks to the British North America Act, and he considers tihat nothing has been changed by the enactment of the Statute of Westminster. Under the Statute of Westminster anything that concerns the crown is the concern of all the members of the commonwealth. That is the constitutional convention embodied in the preamble. It means something, notwithstanding what the >hon. member for St. Lawrence-St. George has said.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

With my hon. friend's

permission, may I direct his attention to the fact that it only purports to be a statement of existing constitutional practice, which makes it still stronger.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

That makes my argument all the stronger. The Statute of Westminster was enacted following the imperial conference of 1926 which appointed a committee of dominion representatives to consider and study the legislation of the various dominions and of the United Kingdom. The imperial' conference of 1930 gave effect to the proposals of the committee of dominion representatives. I should like to direct attention to the report of the conference on the operation of dominion legislation, 1929, paragraphs 56, 59, 60 and 61. These paragraphs deal with the effect of conventions in British constitutional law, and they read:

56. The association of constitutional conventions with law has long been familiar in the history of the British commonwealth; it has been characteristic of political development both in the domestic government of these communities and in their relations with each other; it ha3 permeated both executive and legislative power. It has provided a means of harmonizing relations where a purely legal solution of practical problems was impossible, would have impaired free development, or would have failed to catch the spirit which gives life to institutions. Such conventions take their place among the constitutional principles and doctrines which are in practice regarded as binding and sacred whatever the powers of parliaments may in theory be.

59. As, however, these freely associated members are united by a common allegiance to the crown, it is clear that the laws relating to the succession to the throne and the royal style and titles are matters of equal concern to all.

60. We think that appropriate recognition would be given to this position by means of a convention similar to that which has in recent years controlled the theoretically unfettered powers of the parliament of the United Kingdom to legislate upon these matters. Such a

constitutional convention would be in accord with and would not derogate from and is not intended in any way to derogate from the principles stated by the imperial conference of 1926 as underlying the position and mutual relations of the members of the British commonwealth of nations. We therefore recommend that this convention should be formally put on record in the following terms:

Then follows the recommendation. Paragraph 61 follows:

61. We recommend that the statement of principles set out in the three preceding paragraphs be placed on record in the proceedings of the next imperial conference, and that the constitutional convention itself in the form which we have suggested should appear as a formal recital or preamble in the proposed act to be passed by the parliament of the United Kingdom.

This constitutional convention which the hon. member for St. Lawrence-St. George brushes aside with much levity, has been considered to be binding upon all those who have had anything to do with it since the Statute of Westminster was enacted. My hon. friend may say that the procedure adopted by this government was childish, frivolous and ridiculous-I forgive him for those words; but it was not considered so by the law officers of the crown in Canada or by the law officers in the United Kingdom who were jealous in attempting to reconcile this constitutional convention with the legality of the proposed statute. It was not considered so by the law officers in the governments of the other commonwealth nations. My hon. friend stands in splendid isolation as far as this opinion is concerned. I think we can rely upon the view of the gentlemen to whom I have referred.

One part of the imperial statute gave effect to the abdication of the then king and provided for the accession to the throne of the lawful successor and heir to the succession, the Duke of York, but there was also a provision in the statute which was in effect an alteration of the law of succession, as provided for in the Act of Settlement.

Subsection 2 of section 1 of the act bars His Majesty and his issue, if any, and descendants of such issue, from any right of succession to the throne, and provides that section 1 of the Act of Settlement shall be construed accordingly.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

That is merely declaratory if the statute is complete in describing the demise of the crown.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

No.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

It must be.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

No, because I am afraid that under the Act of Settlement, and it was so considered by the authori-

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Succession to the Throne-Mr. Lapointe

ties in Great Britain, if the former King Edward happened to contract a marriage and had children by that marriage, his children would have had a serious claim to the succession.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Not children born after

the demise.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

It is a

debatable question, I agree, but my right hon. friend will agree that in a situation like the one that existed-

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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January 19, 1937